United States Court of Appeals
For the First Circuit
No. 04-2567
GI KUAN TAI,
Petitioner,
v.
ALBERTO GONZALES,
Attorney General of the United States, ET AL.,
Respondents.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Selya, Lynch, and Lipez, Circuit Judges.
William P. Joyce and Joyce & Associates P.C. on brief for
petitioner.
Mark J. Grady, Assistant United States Attorney, and Michael
J. Sullivan, United States Attorney, on brief for respondents.
August 31, 2005
LYNCH, Circuit Judge. Petitioner Gi Kuan Tai, a native
and citizen of China, seeks review of the denial of his application
for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). Tai's petition to this court
boils down to two claims. First, Tai alleges that the Board of
Immigration Appeals (BIA) erred when it affirmed the Immigration
Judge's (IJ's) finding that Tai's testimony was not credible. The
BIA emphasized that, in an initial interview, Tai did not mention
the claim which became the basis for his asylum application --
specifically, that the Chinese government forced his wife to
undergo compulsory contraception and abortion. Second, Tai argues
that even though he failed to meet long-established requirements
for filing ineffective assistance of counsel claims, the BIA erred
in refusing to consider his ineffective assistance claim on the
merits. Finding no error, we deny Tai's petition for review.
I.
Tai entered the United States at Los Angeles
International Airport on May 8, 2000, using a counterfeit passport
and counterfeit non-immigrant visa, both in the name of Zhao Jian
Min. He was detained by immigration officials, and on May 9, he
gave a sworn statement to an Immigration and Naturalization Service
(INS)1 officer. Asked the purpose of his visit, Tai replied: "I
1
On March 1, 2003, the relevant functions of the INS were
transferred to the Department of Homeland Security, and the INS
subsequently ceased to exist. See Homeland Security Act of 2002,
-2-
come here to make a living. The American policy is more human
[sic] and they respect human rights." Asked why he left China, he
replied:
My factory closed down and I need to make
money. I opened a restaurant and there are
many government restrictions. I have to pay
many taxes and I don't want to pay all this
tax. I want more children.
Tai further stated that he feared going back to China because "if
I go back I will have to pay a fine and undergo re-education camp."
Finally, asked if he wanted to add anything else to his statement,
Tai said: "I have nothing to add. I am just asking the United
States government to let me stay and work in America." Tai
mentioned nothing about his wife being forced to have an abortion.
Two weeks later, on May 23, 2000, another immigration
officer interviewed Tai. Tai stated that he was married, that his
wife was in China, and that the couple had one son. Asked why he
had only one child, he replied: "We had another child but the
officials made my wife abort [t]his child"; he said the abortion
had been performed "three or four years ago." Asked if he was
afraid to return to China, Tai replied that he was, in part because
he "would like to have a few more children" and in part because
officials would "apprehend me and put me in jail and fine me
Pub. L. No. 107-296, § 471, 116 Stat. 2135, 2205 (codified as
amended at 6 U.S.C. § 291(a)). Also, Alberto Gonzales was sworn in
as Attorney General of the United States on February 3, 2005. We
have substituted him for John Ashcroft, previous holder of that
office, as the respondent. See Fed. R. App. P. 43(c)(2).
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because I fled China illegally." Finally, asked why he had said
during the May 9 interview that he did not want to pay taxes in
China, Tai explained that he had been laid off from his government
job and had subsequently started an eatery; he said the government
had assessed taxes on the new business that he thought were unjust,
and that that was part of his reason for leaving the country. He
added in reference to the May 9 interview: "I was only asked about
this information, not about my wife['s] abortion."
On May 7, 2001, Tai filed an Application for Asylum and
for Withholding of Removal. In that application, Tai explained
that he and his wife were married in 1984 and that after the birth
of their son the following year, Chinese family planning
authorities forced Tai's wife to have an IUD inserted. In 1996,
Tai wrote, his wife became pregnant again despite the presence of
the IUD. According to Tai, Chinese officials discovered this
during an examination and forced Tai's wife to have an abortion.
Tai wrote that he was "devastated" by the forced
abortion. He added: "We knew that there was not much time left for
us to have another child so we made plans for me to leave China and
come to the United States. . . . I hope that I am granted political
asylum so that I can petition for my wife and then we can have more
children here."
On January 10, 2003, Tai appeared before the IJ. His
testimony at the hearing with respect to his wife tracked the
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statements in his asylum application. He also testified with
regard to his financial problems: he stated that under Chinese
government policy, he should have been exempt from taxes for three
years after losing his job, but that the government nonetheless
attempted to tax him when he opened his eatery. "Because they want
me to pay tax I couldn't stay in my home any longer," he testified,
"[s]o that's why I came to the United States." Later in the
hearing, he reiterated that he left China because of his finances:
Q: Did they close you down for not paying the tax,
sir?
A: Yes. They, they warn me, if I don't pay the tax
they will close . . . my eatery and because of
that. So I closed, I closed my eatery.
. . .
Q: Is that why you had left China, because you
didn't have any work, sir?
A: Because, because, because I couldn't make a
living. And I'm a law abiding citizen and I
worked with my, with my two hands and, to support
my family.
Still later, the judge questioned Tai about his initial statement
at the airport:
Q: Sir, did you tell the authorities when you arrived
in the United States . . . why you left China and
why you came here?
A: Yes. Yes, I told. Yes, I told everything in Los
Angeles.
Q: What did you tell? Tell us what you told.
A: Everything I, I said today here.
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II.
At the conclusion of the hearing, the IJ rejected Tai's
application for asylum, withholding of removal, and CAT protection.
The IJ found that Tai's testimony "cannot be given any credence"
because (1) he "consistently lied" in that he used a fake name, a
fake passport, and a fake non-immigrant visa upon arrival in the
United States; and (2) his failure to mention the abortion and
contraception issues during his first interview undermined the
trustworthiness of his story. Since Tai's testimony was not fully
credible, the IJ found, he needed to offer documentary evidence of
his wife's abortion and his tax issues in order to carry his burden
of proof, and he had not done so. The IJ noted that Tai had
submitted his marriage license, the birth certificates of his wife
and son, and a business license for his eatery, but nothing
regarding the taxes or the abortion. The IJ concluded that Tai
"could obtain those documents" and should have done so.
Based on Tai's lack of credibility and lack of
corroborating evidence, the IJ rejected the asylum application. He
also concluded that since Tai had not met his burden for asylum, he
was by definition ineligible for withholding of removal. Finally,
he found that in the absence of any evidence of past or prospective
torture, Tai should be denied CAT protection.
On appeal to the BIA, Tai offered "newly discovered
evidence" -- translations of the documents the IJ had sought
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regarding his tax debts and his wife's compulsory IUD insertion and
abortion. Tai argued that his attorney during his initial hearing
had failed to translate the documents and submit them to the IJ.
The BIA rejected his appeal and affirmed the IJ's
decision on October 22, 2004. The BIA began by noting that while
the IJ's credibility analysis had been "minimal," the BIA's own
review of the record did not leave it convinced that a mistake had
been committed with regard to the adverse credibility finding. It
based this conclusion not on the fraudulent documents but solely on
Tai's failure to mention the abortion or contraception issues in
his initial interview: it found that failure "materially
inconsistent" with his later testimony regarding his wife. Given
the inconsistency, Tai needed to offer corroborating evidence to
carry his burden; he had neither done so nor convincingly explained
the absence of corroboration, despite the fact that documents like
abortion records are "reasonably available."
The BIA declined to consider Tai's new evidence, saying
it reviews only the record as it existed before the IJ. It noted
that while Tai claimed his original counsel's negligence was behind
his failure to offer corroborating evidence, Tai had not complied
with the requirements for ineffective assistance of counsel claims
set forth in Matter of Lozada, 19 I. & N. Dec. 637 (BIA 1988).
Finally, it noted that Tai had not alleged error in the IJ's denial
of CAT relief. This petition for review followed.
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III.
An applicant for asylum bears the burden of establishing
his eligibility by proving he is a "refugee" -- that is, by proving
past persecution or a well-founded fear of future persecution on
account of "race, religion, nationality, membership in a particular
social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); 8
C.F.R. § 208.13(b). A statutory provision added by Congress in
1996 states that anyone "who has been forced to abort a pregnancy
or to undergo involuntary sterilization . . . shall be deemed to
have been persecuted on account of political opinion." 8 U.S.C. §
1101(a)(42). The BIA interprets this provision broadly, applying
it not only to those forced to undergo abortions but also to their
spouses. In re C-Y-Z-, 21 I. & N. Dec. 915 (BIA 1997); see also
Chen v. Gonzales, No. 04-2623, 2005 U.S. App. LEXIS 16908, at *2
(1st Cir. Aug. 12, 2005).
In reviewing denials of asylum and related relief, this
court reviews the BIA's decision, the final agency order.
Mukamusoni v. Ashcroft, 390 F.3d 110, 119 (1st Cir. 2004). We
examine whether the BIA's findings, including credibility
determinations, are supported by substantial evidence in the
record. Da Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005); see
also INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under the
highly deferential substantial evidence standard, we must uphold
the BIA's findings "unless any reasonable adjudicator would be
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compelled to conclude to the contrary." Bocova v. Gonzales, 412
F.3d 257, 262 (1st Cir. 2005) (quoting 8 U.S.C. § 1252(b)(4)(B)).
A. The BIA's Credibility Determination
Tai makes two arguments with respect to the BIA's adverse
credibility determination. First, he says, the BIA rested the
finding largely on the fact that he failed to obtain records of his
wife's abortion and compulsory contraception. This was improper,
Tai argues, because (1) he explained at his hearing that he could
not obtain those documents because they are "greatly restricted" by
the government, and (2) therefore the BIA's adverse credibility
determination was based on unfair expectations of the evidence he
could produce. Tai's argument fails because his premise is
incorrect: the BIA relied for its adverse credibility finding not
on the lack of corroboration but on the fact that Tai did not
mention contraception or abortion in his initial interview.2
Second, Tai argues that the BIA erred in relying on his
failure initially to mention his wife's abortion because adverse
credibility findings must be based on discrepancies that "involved
the heart of the asylum claim." Borjorques-Villanueva v. INS, 194
F.3d 14, 16 (1st Cir. 1999). He says the BIA's finding here
violated that command because it was based on "trivia."
2
Also, contrary to his assertion on appeal, Tai never explained
to the IJ that the documents in question were "greatly restricted."
And, of course, Tai later produced those very "greatly restricted"
documents and tried to submit them to the BIA.
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Tai's reliance on Borjorques-Villanueva is misplaced.
The discrepancy relied upon by the BIA quite clearly went to the
heart of Tai's claim: it is difficult to imagine what could be more
central to a claim of asylum than the question of whether the
events on which it was based ever happened. And while one could
draw other inferences besides untruthfulness from Tai's failure
initially to mention his wife's abortion -- one could surmise, for
example, that he did not think it relevant or was embarrassed to
discuss it -- the evidence certainly does not compel those
inferences. See Bocova, 412 F.3d at 262. The BIA's adverse
credibility finding therefore survives substantial evidence
review.3
B. The Ineffective Assistance Claim
Given the volume of ineffective assistance of counsel
claims asserted by removable aliens, the BIA has developed
threshold procedural requirements to enable the screening of claims
that are frivolous or collusive. See Wang v. Ashcroft, 367 F.3d
25, 27 (1st Cir. 2004). The requirements, set forth in Matter of
3
Tai cites He v. Ashcroft, 328 F.3d 593, 600 (9th Cir. 2003), for
the proposition that mentioning an incident at an asylum hearing
that was not mentioned earlier does not constitute inconsistency
for purposes of credibility analysis. But in He, the initially
omitted fact was not relevant until the applicant had been asked
other questions at his hearing, and therefore it made no sense to
expect the applicant to have mentioned it earlier. Id. at 600-02.
By contrast, where an applicant initially omits a fact crucial to
his claim, the agency may consider that omission in its credibility
determination.
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Lozada, 19 I. & N. Dec. 637 (BIA 1988), state that a motion to
reopen based on ineffective assistance must be supported by:
(1) an affidavit describing in detail the
agreement between the alien and his counsel
regarding the litigation matters the attorney
was retained to address; (2) evidence that the
alien informed his counsel as to the alien's
ineffective assistance allegations and
afforded counsel an opportunity to respond;
and (3) evidence that the alien had either
filed a complaint with the appropriate
disciplinary authority regarding the
attorney's ethical or legal misfeasance, or a
valid excuse for failing to lodge such a
complaint.
Betouche v. Ashcroft, 357 F.3d 147, 149 (1st Cir. 2004) (citing
Lozada, 19 I. & N. Dec. at 639).
In this case, Tai failed to meet any of the Lozada
requirements, a fact he does not dispute. Nonetheless, he argues
that the BIA erred when it ruled without reaching the merits of his
ineffective assistance claim. He suggests that the BIA was
obligated to inform him that he had not met the Lozada requirements
and to allow him time to re-file his claim.
This argument has no merit. It is well-established that
"[t]he BIA acts within its discretion in denying motions to reopen
that fail to meet the Lozada requirements as long as it does so in
a non-arbitrary manner." Asaba v. Ashcroft, 377 F.3d 9, 11 (1st
Cir. 2004). The only question, then, is whether the BIA's
application of Lozada here was arbitrary. Relying on Saakian v.
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INS, 252 F.3d 21 (1st Cir. 2001), Tai argues that it was. He
suggests Saakian stands for the proposition that
where an alien files a timely appeal and
alleges facts which, if true, could be defined
as ineffective assistance, the BIA . . .
should invite the alien to remedy his or her
claim to satisfy the Lozada requirements.
Tai's reading of the precedent is too broad.
In Saakian, this court deemed the application of Lozada
arbitrary where petitioner (1) was proceeding pro se when he filed
a faulty ineffective assistance motion with the IJ, id. at 26; (2)
had the right to file further motions to reopen and was still
within the filing deadline, id.; (3) was misled by the IJ, who
implied that Saakian was foreclosed from remedying the deficiencies
in his motion, id.; (4) fulfilled the Lozada requirements in his
appeal to the BIA, id. at 24; and (5) was nonetheless rejected on
appeal, id. None of those factors (other than the rejection on
appeal) is present here. Indeed, as the government points out,
relief at the agency level was not foreclosed by the BIA's
dismissal of Tai's appeal: he could have moved to reopen any time
within 90 days after the BIA order, see 8 C.F.R. § 1003.2, and he
did not do so. In short, unlike Saakian, this is not a case where
petitioner "did what he was supposed to do in order to be heard on
the merits" and nonetheless never received a merits hearing. 252
F.3d at 27. Since the application of Lozada was not arbitrary, the
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BIA "act[ed] within its discretion," Asaba, 377 F.3d at 11, and
Tai's claim to the contrary fails.
C. The Withholding of Removal and CAT Claims
Having disposed of each of Tai's claims with respect to
asylum, we have nothing left to address. Tai waived his CAT claim.
Similarly, he makes no argument with respect to withholding of
removal, and thus that claim also is waived.4 See Ali v. Gonzales,
401 F.3d 11, 14 n.3 (1st Cir. 2005).
IV.
Since substantial evidence supports the BIA's adverse
credibility finding and the BIA was within its discretion in its
application of Lozada, Tai's petition for review is denied.
4
Had Tai not waived the withholding claim, it would fail as a
matter of course given our affirmance of the denial of the asylum
claim. See Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st
Cir. 2005).
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